Tuesday, October 11, 2005

I love what Clarence Thomas has done while on the Supreme Court. Even as he continues to distinguish himself on the SCOTUS bench, whenever his name comes up I recall the horrible confirmation process he was forced to undergo. His success gives me a continued sense of pride and vicarious vindication.

I think of Justice Thomas often now as I watch Harriet Miers being hammered daily -- by the right, not the left. What reminds me of Thomas is that this time, the right is attacking Miers for the same perceived shortcomings that liberal opponents raised about Thomas. Then, conservatives vigorously rejected the liberal attacks. Now they are using them against Miers. This is yet another example of the inconsistency and sheer vacuity of much of the conservative opposition to the nominee. Consider:

1. Thomas had very light experience. He'd never practiced law, except for a three-year stint in the Missouri Attorney General's office, where he focused on state tax issues - not exactly the training ground for a SCOTUS seat. Then he was in-house at Monsanto for two years, after which he returned to work for now-Senator Danforth as a legislative aide. Not a lot of Olympian-level legal training there, either. After three years with Danforth, President Reagan appointed Thomas assistant secretary for civil rights in the Department of Education. Soon after Reagan promoted him to head the Equal Employment Opportunity Commission (EEOC), where he stayed until 1990, when Bush I appointed him to the D.C. Circuit. After barely a year in that seat, Thomas was elevated to the Supreme Court when Thurgood Marshall retired in 1991. The rest, of course, is history.

Let us pause here to consider again the comments of George Will on the lofty heights to which the brain of a would-be SCOTUS justice must aspire:

[C]onstitutional reasoning is a talent -- a skill acquired, as intellectualskills are, by years of practice sustained by intense interest. It is notusually acquired in the normal course of even a fine lawyer's career.

How about that? I don't think Justice Thomas's pre-SCOTUS career would be described even as that of a "fine lawyer." It looks like a fairly undistinguished legal career with lots of political positions and bureaucratic administration thrown in (albeit at high levels). It's not clear to me that Thomas had "years of practice" in constitutional law, or that he had an "intense interest" in the subject.

Turning to Harriet Miers, in today's edition of Opinion Journal's Political Diary, a subscription service, John Fund raises the question of Miers' background:

The portrait of Harriet Miers emerging from interviews with her friends andcolleagues in Texas is largely a consistent one. She is universally regarded asbright, hard-working and remarkably gracious. But she also clearly has a steeplearning curve when it comes to serving on the Supreme Court.

On today's show Rush Limbaugh stated that the real problem with Miers is that she "has not proven herself as a true scholar of the Constitution."

What John, Rush and others seem not to recognize is that whatever Thomas's experience, that of Harriet Miers far surpasses anything he had done by the time of his elevation to SCOTUS. Was Thomas "a true scholar of the Constitution?" Why was Thomas's SCOTUS "learning curve" any steeper than Miers'? Why does a different standard seem to apply to Miers?

2. Speaking of Thomas's level of interest in constitutional law, his confirmation hearings were remarkable on that point, to say the least. Those of us willing to admit to being old enough to have followed closely the Clarence Thomas confirmation hearings remember the controversy generated by then-Judge Thomas's comments on Roe v. Wade and on the subject of abortion generally. You'll see all that unfold at this web site, which contains the entire trancript of the Thomas hearings.

The Democrats were intensely interested in Thomas's views on Roe v. Wade. Incredibly, Thomas pretty much testified that he had no opinion on Roe. In a famous exchange, Senator Leahy asked Thomas whether he had ever even discussed that decision with anyone. Thomas steadfastly insisted he had not done do. Here are some excerpts:

JUDGE THOMAS: The case that I remember being discussed most during my early part of law school was I believe in small group with Thomas Emerson may have been Griswold since he argued that. And we may have touched on Roe v. Wade at some point and debated that, but let me add one point to that, because I was a married student and I worked, I did not spend a lot of time around the law school doing what the other students enjoyed so much, and that's debating all the current cases and all of the slip opinions. My schedule was such that I went to classes and generally went to work and went home.

. . .

SEN. LEAHY:Have you ever had discussion of Roe versus Wade other than in this room? (Laughter.) In the 17 or 18 years it's been there?

. . .

SEN. LEAHY:Well, with all due respect, Judge, I have some difficulty with youranswer, that somehow this has been so far removed from your discussions or feelings during the years since it was decided while you were in law school. You've participated in a working group that criticized Roe. You cited Roe in a footnote to your article on the privileges or immunity clause. You've referred to Lewis Lehrman's article on the meaning of the right to life. You specifically referred to abortion in a column in the Chicago Defender. I cannot believe that all of this was done in a vacuum absent some very clear considerations of Roe versus Wade, and in fact, twice specifically citing Roe versus Wade. . . .

JUDGE THOMAS: Senator, your question to me was, did I debate the contents of Roe versus Wade, the outcome in Roe versus Wade, do I have this day an opinion, a personal opinion, on the outcome in Roe versus Wade, and my answer to you is that I do not.

Come back to the present. Consider the biting comments of Laura Ingraham, who finds it outrageous (and even laughable) that Harriet Miers has not spoken out, somewhere, sometime, on Roe v. Wade. And yet Thomas testified, under oath, that he not only had not spoken out on that case, he didn't even have an opinion about it.

Do you see any inconsistency here? Does it make you wonder how Ms. Ingraham, who was Thomas's law clerk, could possibly have forgotten his position on Roe, which was much-ridiculed at the time?

One last point: Thomas actually testified that he recognizes the existence of a constitutionally-protected privacy right:

JUDGE THOMAS: Senator, the -- without commenting on Roe v. Wade, I think I have indicated here today and yesterday that there is a privacy interest in the Constitution, the liberty component of the due process clause, and that marital privacy is a fundamental right. And marital privacy then would be -- can only beimpinged on or only be regulated if there is a compelling state interest. That is the analysis that was used in Roe v. Wade, you're correct. I would not apply the analysis to that case, or can't do it, in this setting, and I have declined from doing that in this setting. The analysis separate from that case, if that's the test, the compelling interest test, I don't have a problem with that particular separate analysis, separate and apart from that case. But I think it's inappropriate for me to sit here as a judge and to say that I think that that should be used in a case that could come before the Court, for the reasons that I've stated previously."

And again:

JUDGE THOMAS:And what I'm saying is that the compelling interest test I do not quarrel with, and I do not quarrel with the application of the compelling interest test where the right of privacy is found to be fundamental. My point isthat I cannot apply that test in the specific instance involving the issue of abortion involved in Roe v. Wade. That's what I'm declining to do.

Imagine the firestorm that would result if Harriet Miers made a similar statement. Even John Roberts caused great heartburn on the right with a similar comment during his confirmation hearings.

I am not saying there are not reasons to be concerned about Harriet Miers as a SCOTUS nominee. It does seem, however, that most of the stated reasons for the opposition of so many conservatives cannot withstand scrutiny and seem to be flat-out concoctions, often elaborate ones. It is difficult to reconcile, for example, conservatives' acceptance of Thomas's perceived weaknesses and their hostility to Miers because of similar perceived weaknesses. Although they complain loudly that Bush broke his promise to appoint justices in the mold of Scalia and Thomas, Miers looks an awful lot like Thomas to me.

Again: The reasons for most conservative opposition to Miers seem to be emotional. It's not a question of the nomination President Bush did make, it's the one he did not make. Because he did not appoint a member of the group of candidates preferred by most conservatives, they feel betrayed, and many are bitterly disappointed. That's why their reasons for opposing Miers seem to be a moving target-- they're trying to find a rational basis for an emotional belief. That's why every anonymous tidbit that seems negative about Miers is eagerly scooped up and reported widely-- not by blogs alone, but by established journalists as distinguished as John Fund. I think that's also why some conservatives respond with such anger to posts like this one. Anger, after all, is another emotional response to reality.

UPDATE: There is humor in all this, by the way. Commenter Ben Wisdom has written a song about all this, "Swing Roe, Sweet Harriet." It's brilliant.

12 Comments:

However, I really do believe the bulk of conservative resistance to this pick is not primarily due to the person of Miers, it's the person we're not getting.

There are other candidates whose records are much more indicative of a strong conservative philosophy.

At the time there was conservative resistance to Souter, who came on the recommendation of New Hampshire moderates. There was even some conservative eyebrow-raising over Thomas a year later, with some wondering if Thomas was just an affirmative action pick.

Religious conservatives, such as my self, were just as desirous of a strong originalist justice then, and we're weren't terribly happy with the Souter and Thomas picks, as we thought then the picks were an effort to avoid a fight. Certainly they weren't interpreted as bones thrown to the religious right.

Did I want a strong conservative nominee; yes. Did I want a fight with the Democrats; yes again. Do I trust the President’s judgment in selecting judges; very much a yes. I can say this; I certainly wouldn't want to go to the mat over a nominee with the likes of the Republican senate covering my backside. I really think that many of my fellow conservatives/traditionalists are over reacting. Do I agree with the President on all issues? Hell no! I write to him often (for what it is worth) criticizing his excessive spending and lack of border control. However, I certainly don’t want conservatives to shoot themselves in the foot over this issue. As to all of the conservative pundits, who generally I respect, criticizing this nominee with great emotion, I guess the beltway mentality is non-discriminatory.

Actually, though this may not have been widely known at the time of Thomas's nomination, he has always been a true intellectual who is seriously interested in the world of ideas. I have seen no evidence to date that Miers is even remotely in the same league.

Consider this remarkable passage from Ken Marini, who worked for Thomas at the EEOC:

http://www.ashbrook.org/publicat/onprin/v2n5/masugi.html

QUOTE: What I found so intriguing about Clarence when I first met him in early 1986 was his interest in ideas and principled political action. Through a strange series of coincidences, some popular writing of mine on civil-rights issues came to his attention. This piqued his interest in me, we met, hit it off, and he offered me a position on his staff. I would be a kind of a scholar-in-residence , offering my insights on whatever I thought was important for him to know. He in turn would give me an opportunity to learn about all the horrors and dangers of contemporary Washington. It all seemed a bit odd to me at first, but it worked out marvelously.

My office was a few doors down from his, and when the press of agency business did not overwhelm him, we would talk during the day. Sometimes we would take long walks after lunch. He would enjoy a cigar and reflect on some issue or point that disturbed or impressed him. We eschewed the Washingtonese of inputs and outputs and spoke instead of individual freedom, moral principle, and responsibility. He might mention a book he was reading--say Allan Bloom’s Closing of the American Mind--and we would discuss it. Thomas would often debate the issues of the day--or of eternity--with his diverse personal staff, who were mostly career employees politically on the left. Sometimes a visiting scholar from out of town or someone from another agency would come by for these sessions. Thomas’s conservatism was evolving--formed in part by his background and his now famous grandfather, by his experience in government, by the discussions he had over the years with a variety of friends and colleagues, but most of all by his own stubbornness and determination to make sense of a world that he saw sliding into an abyss.

Being thoroughly naive on the ways of Washington, I would describe my job and workday to astounded colleagues in other, normal Washington jobs. They would gasp in amazement: What agency head would spend time reading serious scholarly books not directly relevant to the mission of the agency? What agency head (in the world of Washington, D.C., he who is without ego is lost) would willingly submit himself to criticism and tutoring? Who else at this high a level would spend time reflecting on the philosophic underpinnings of American national government, and how they meshed with the practice of the day? And here I wished that my boss would spend more time with serious books and less with this damnable agency, which seemed to me a dangerous one to strengthen, in any case.

After a few months at the EEOC, Chairman Thomas asked me to see whether we might expand his think-tank, and we hired, among others, John Marini, now at the University of Nevada, Reno, and author of The Politics of Budget Control. After we had been at it for a while, one former veteran of Washington remarked that he never thought that in order to have an intellectual discussion in Washington, D.C. he would have to come to the EEOC!

That is one of the things I enjoy about Clarence Thomas. I am an unabashed fan. The most important part of your comment is your acknowledgement that Thomas's interest in ideas "may not have been known at the time of his confirmation." In Miers' case we haven't even gotten to the confirmation hearings yet. I think you should give her at least until then before you worry to much about her intellectual curiosity.

As my blogname attests to, I am not a lawyer, an academic, or a constitutional scholar. I am in no way qualified to pass judgement on the qualification of Ms. Miers. But there is one thing I have noticed in the past five years.

President Bush is one fine damn poker player. I am loathe to underestimate him or bet against him.

I was very active in Washington State and national Republican politics in 1991, and I remember a number of conservatives grousing about Thomas. Many activists suspected Thomas was purely an affirmative action pick. I saw it as a good way to stick it to Democrats who thought they had a monopoly on the "black community." The disgraceful "high tech lynching" of Thomas during the hearings united most conservatives behind him.

Conservatives opposing the Miers nomination are accusing Bush of avoiding a fight. This is the same man who, during a bitter presidential campaign, refused to cave into Democrat and MSM demands that he apologize for the Iraq war and that he set a timeline fo withdrawal. He has also refused to back down on tax cuts and many other agende items.

The bottom line is that Harriet Miers is about the best Bush could do under the circumstances. Because of too many "squishy," pro-abort Republican Senators, Bush was pretty sure he didn't have enough votes for confirmation of a Luttig, Owens, McConnell or Brown -- let along enough votes to pull the trigger on the nuclear option to kill judicial filibusters.

So he went with Miers, who has convinced him she's a strict constructionist. Her confirmation won't be a cake walk... not only will the libs attack her, so will some cranky, dissatisfied Republicans. She could very well be attacked from both the right and the left. We'll see how she handles it during the confirmation hearing process.

But the bottom line is, until we get more conservatives in the Senate, the only way we can get conservatives on the court is through stealth candidates. And that's the truth!

I believe the backlash from the right the president is witnessing is that this nomination became a tipping point for concervatives. Conservatives bit their tongue, looked the other way on such issues as immigration, spending, more spending, overloaded pork in such items as the transportation bill and the chumsiness with Bill Clinton which had many scratching our heads, and especially not standing up not to the democrats or the press when being unfairly attacked. The one thing conservatives were saying we have to support him if even only for his supreme court picks, and now that just turned into a fuzzy gray area.

I think Tommy G. said it for me well. Bush has been a big disappointment in almost every way, except that (a) he takes the global civil war seriously; and (b) he has made good judicial picks.

Until now. When it really mattered.

I'll concede that Clarence Thomas has greatly exceeded expectations. I think the resemblance to Meirs is superficial, but suppose for sake of argument that the backgrounds are similar. Is it reasonable to expect that we will be so lucky a second time?

I've never thought of Thomas as brilliant. His views on natural law don't seem very workable. But he votes as I would like him to.

What has really amazed me about this episode is that the conservatives savaging Harriet Miers are making the same arguments against her that the Democrats made against John Roberts. I thought Bush was moving ahead steadily to knock down the litmus test demanded by Chuck Schumer and others, and all of a sudden it pops up on his own side.

That's why I think Bush should stick with Miers, if nothing more than to make the point that this assumption by rightwing pundits that they should be consulted on all nominations is out of line.

The true measure of a Supreme Court justice is the decisions she makes, not how beautiful her prose is or how well she splits all the hairs in Constitutional theory. The more I think about her private nature and disinterest in being active in the D.C. cocktail circuit, the better I feel about her.

The true measure of a Supreme Court justice is the decisions she makes, not how beautiful her prose is or how well she splits all the hairs in Constitutional theory.

This strikes me as an "ends justify the means" argument. It is not sufficient to get the right result; there must be solid legal reasoning behind the result. This gives it the legitimacy necessary to persuade future generations. We ought not to be appointing Supreme Court justices whose decisions will be important only for a passing season of the world.